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The risky business of suspension

Employers can face swingeing legal penalties if they rush into suspending an employee under suspicion of misconduct.

In cases of suspected employee misconduct, the first instinct of an employer is to suspend the employee under suspicion rather than risk ongoing damage to the business by keeping the person in his or her role pending the outcome of what could be a protracted investigation.

However, there are significant legal risks with suspension and there have been a number of high profile cases in recent years where the courts did not accept that suspension was warranted, leading to employees succeeding in claims against their employers.

These cases have included a bank official suspended for allegedly using inappropriate emails in work and a senior executive who was suspended on national television.

They provide some guidance on the limited circumstances when suspension is legally acceptable.

While the traditional understanding of suspension is simple i.e. an employee is not permitted to attend work, suspension can cover a multitude of sanctions including preventing an employee from accessing his company computer system to placing an employee on restricted duties.

Broadly speaking, there are two types of suspension - a holding suspension pending the conclusion of a disciplinary investigation and a punitive suspension which is a suspension imposed as a sanction following the conclusion of a disciplinary procedure.

Suspension of an employee, whether paid or unpaid, is regarded as an extremely serious measure, which can cause irreparable damage to an employee’s reputation and standing.

For this reason, it is important to ensure that confidentiality is maintained and that the employee’s absence is communicated appropriately both to other members of staff and to external clients or customers.

It is also well established that holding suspensions can only be legally effected in very specific circumstances namely:

to prevent repetition of the misconduct

to prevent interference with evidence

to protect individuals at risk from the misconduct, or

to protect the employer’s business and reputation.

Employers considering suspension should consider the rationale for suspension based on the particular facts and whether one of these circumstances applies.

Where the employee is co-operating with the employer’s investigation and there is no real risk of the alleged misconduct being repeated, it will be difficult for an employer to justify a suspension and it could be regarded as a pre-judgment of guilt by the employer.

As with any investigation or disciplinary process, it is important that all employees are seen to be treated equally and that fair procedures are followed. Equal does not mean identical. However, where the misconduct is widespread all employees need to be treated consistently unless there are clear objective reasons to treat any one employee differently.

In terms of fair procedures, the employee should also be made aware of the suspension as soon as possible. This includes ensuring that the employee is informed of the reasons for the decision to suspend.

Finally, a suspension should only continue until the investigation or disciplinary process has concluded and it is more important than usual that the process is conducted as speedily as possible.

If there are any delays, it can become practically impossible to restore a suspended employee to his or her position, simply by virtue of the reputational damage caused by the fact of the suspension, even if the outcome is to ultimately vindicate the employee of any wrongdoing.

In summary, employers should only proceed to suspension after careful consideration of all the circumstances, possible options and risks. At a minimum, the following should be considered before an employee is suspended:

Review the employee’s contract of employment and/or disciplinary procedure to ensure that paid suspension is permitted.

Ensure that suspension is necessary in the circumstances and in particular, that the suspension falls under one of the criteria set out above.

Consider whether a suspension is required to carry out an effective investigation or disciplinary process.

Consider whether there are any alternatives to suspension.

Communicate the decision to suspend the employee including the reasons for the suspension and the fact that it does not signify a pre-judgement.

Take steps to ensure that confidentiality is maintained to reduce any impact on the employee’s reputation.

Ensure that the investigation and any disciplinary process are carried out immediately and that fair procedures are adhered to at all times.

Any holding suspension should always be with pay.

Of course, there are situations where the risk to the business of allowing an employee to remain in position will outweigh the legal risks associated with suspension.

That is a perfectly legitimate business decision but one that should be made in an informed manner, knowing the potential legal exposure.

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